an analysis of delay in filing of written statement

7/29/2019 An Analysis of Delay in Filing of Written Statement

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I. INTRODUCTIONDelay in the disposal of cases has been a cause of serious concern for the judiciary and

the legislature alike.1

Amongst the several endeavours made on this front to cut down the

pendency, Rule 1 of Order VIII of the Code, prescribes the limitation period for filing of

a written statement by a defendant in a suit, has undergone several changes since the

entry into force of the Code in 1909. The said provision has travelled from being a

provision expressly permitting judicial discretion to extend time to one mandating the

defendant to file the written statement with a stipulated time period with a proviso

authorizing extension of time with a negatively-prescribed outer limit.

II. OLDER PROVISIONS WITH REGARD TO OF FILING WRITTENSTATEMENT

The said rule, as it existed before the coming into force of Code of Civil Procedure

(Amendment) Act, 1976, read as follows:

The defendant may, and if so required by the court, shall at or before the first

hearing or within such time as the court may permit, present a written statement

of his defence.

Before the 1976 Amendment, in terms of Rule 1, a defendant had the option of filing the

written statement either at the time of, or at any time before, the first hearing of the suit.

The said rule further expressly granted the courts the discretion to permit the filing of the

written statement by the defendant within a time that it may prescribe in this behalf.

Under such circumstances, i.e. where the court had permitted the defendant to file the

written statement within a prescribed period, it was mandatory for the defendant to file

the written statement within such prescribed time period. It may, however, be noted that

the discretion so conferred upon the court to grant time for filing of the written statement

after the first hearing of the suit, was unlimited and unguided in the sense that the rule did

not provide for any specific outer time limit within which the court must require the

defendant to file a belated written statement. There was thus no reference point,

1Law Commission of India 221st Report on Need for Speedy Justice Some Suggestions (April-2009),

available at www.lawcommissionofindia.nic.in/reports/report22.pdf which study was taken up by the Law

Commission suo motu.


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whatsoever, in terms of any prescribed time limit within which the belated written

statement had to be filed.

Of course, the general requirement of some degree of reasonableness can, without doubt,

be read into the provision on the ground that the said rule seeks to confer judicial

discretion upon the court. It is, however, difficult to attribute any further degree of

circumspection or limitation on the power of the court under the said rule, as it existed

before the 1976 Amendment.

The 1976 AmendmentAs a result of the 1976 Amendment, Rule 1 of Order VIII of the Code came to read as

under:

The defendant shall, at or before the first hearing or within such time as the

court may permit, present a written statement of his defence.

As is clear from a bare reading, the 1976 Amendment, in essence, sought to

delete the words may, and if so required by the court and allow only shall to

continue on the statute book. The legislative intention in amending the provisions of the

rule seems quite clear, i.e. to make the provisions of that rule mandatory and not merely

directory as was the position before the said amendment.

It may be pertinent to point out here that the rule, as it existed before the 1976Amendment, indeed used the word may at the following two places:

(a)the defendant may, , present a written statement of his defence; (b)within such time as the court may permit.2

As a result of the usage of word may twice, the provision conferred discretion at each

of the aforesaid two levels. The use of may in (a) above indicated that the filing of the

written statement was, as would be obvious, a matter of choice for the defendant, i.e. the

defendant could decide for himself whether to or not to file the written statement, unless

required by the court to do so, in which case, the defendant had no such choice. The use

of the word may for the second time in (b) above conferred discretion on the court to

determine the time period within which the defendant must file the written statement.

Looked at from this perspective, it would be obvious that the delay in the disposal of a

2 Bindeshwari Kamkar v. Radha AIR 1979 Pat 78


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suit would, if at all, be occasioned only on account of the use of the word may in (b)

since the courts were thus given a free hand to determine the time within which the

written statement would have to be filed. Furthermore, there was nothing in rule 1 as it

existed before the 1976 Amendment which would debar a court from exercising the said

discretion of determining the time period only once.

The absence of such a bar on the courts discretion, in theory, allowed the courts, and

was, in practice, ruthlessly exploited by the appearing advocates, to extend the time for

filing the written statement infinitely. It was, thus, the use of the word may in the

second part (i.e. (b) above) that led to delay in disposal of suits. Quite the contrary,

leaving a defendant with the discretion of filing or not filing a written statement can only

fasten the disposal of cases, at least in cases where the defendant exercised the discretion

not to file a written statement.

The Statement of Reasons and Objects to the 1976 Amendment cited the need for quick

disposal of suits as the primary driving force. Surprisingly still, the 1976 Amendment

caused the deletion ofthe words may, and if so required such that it became imperative

for a defendant in all cases to file a written statement, without bringing about any

modification of the second part of the rule, which, as highlighted above, was a cause of

delay in disposal.

The 2002 AmendmentIt took the legislature a little over a quarter of a century to realize that it had amended a

wrong provision. The error was sought to be set right by the Code of Civil Procedure

(Amendment) Act, 2002, which, substantially taking away from the courts the discretion

to extend time for filing of the written statement, reads as follows:

The defendant shall, within thirty days from the date of service of summons on

him, present a written statement of his defence.

While substantially reducing, by prescribing the limit of thirty days, the discretion of the

courts, the legislature, being conscious that in some cases delay in filing of a written

statement could indeed be occasioned by genuine causes, inserted a new proviso to the

said rule which reads as under:

Provided that where the defendant fails to file the written statement within the

saidperiod of thirty days, he shall be allowed to file the same on such other day, as may


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be specified by the Court, for reasons to be recorded in writing, but which shall not be

laterthan ninety days from the date of service of summons.

On a careful scrutiny of the present Rule 1 (together with the newly inserted proviso), it

appears that:

(a) The filing of a written statement by the defendant is mandatory and he has nochoice, as was the case before the 1976 Amendment, to not file his written

statement;

(b) The maximum period within which the defendant is entitled to, as of right, filehis written statement has come to be prescribed as thirty (30) days from the

date of service of summons. This prescription, in our view, is far more

objective and foreseeable than the criterion of the first hearing;

(c) Filing the written statement within the aforesaid thirty days is the rule and theextension of time beyond the said thirty days is an exception;

(d) To take care of the exceptional circumstances of a defendant, the Courts havebeen given the discretion/power to extend the aforesaid time period for filing

of the written statement;

(e) Where a court wishes to extend time beyond the prescribed period of thirtydays, the court must record its reasons for doing so; and,

(f) The said discretion/power of the court to extend such time extends to no morethan ninety days.

The aforementioned inferences and deductions are buttressed by the Statement of Objects

and Reasons to the 2002 Amendment, which also points in the same direction. Para 3 of

the said statement states that the proposed amendments seek to provide that (c) a

defendant is to file written statement within thirty days from the date of service of

summons but such date can be extended up to ninety days by the Court for reasons to be

recorded in writing.

It is universally accepted that bizarre circumstances, that subjects find themselves into,

are often stranger than can ever occur to the mind of a most vigilant and imaginative

legislature. This forms the basis for judicial (and executive) discretion as well as of the

vagueness of law. Conscious of this, legislatures world over confer discretion on the

courts, giving them often an unsteered control to rule in such uncanny circumstances,

leaving the courts to do a balancing act by deciding the degree of permissible deviation


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from the rule prescribed by the legislature. This degree of deviation is often directly

proportional to the degree of exceptionality of the circumstances which a subject is put

to.

The question, then, is whether the default outer limit of ninety days prescribed by the

proviso to Rule 1 of Order VIII of the Code is conclusive so that in no case, howsoever

exceptional, would a breach of this outer limit be warranted and that in no case, the

balancing act of the court would be allowed to incline towards an extension of time,

beyond the period of ninety days, for filing the written statement.

III. RESPONSE OF THE JUDICIARYThe 2002 Amendment led to a serious confusion amongst the High Courts. Not all courts

seemed to be taking any uniform view. While some courts construed the proviso to Rule

1 of Order VIII of the Code in a strict and mandatory manner, the others construed it

liberally holding it to be merely directory and indicative.3

Provisions of CPC in the aid of Rule 1 Order VIIIIn justifying the directory nature of the proviso, several other provisions of the Code and

allied laws were sought to be pressed into service. Some of such provisions and the

arguments connected therewith are briefly discussed here:1. Section 151 of the Code: The all-pervasive, omnipotent provision, which is the

charter of inherent powers of a civil court, can be invoked only in respect of a

matter not otherwise expressly dealt with under the Code. Where the Code

contains an express provision in respect of a matter, resort to the provisions of

Section 151 of the Act is impermissible.4

In the context of filing of a written statement, the bar under Rule 1 of

Order VIII of the Code on accepting a belated written statement would

constitute an express provision so that assumption /exercise of jurisdiction

3 Sukhdev Singh Gambhir v. Amrit Pal Singh AIR 2003 Del. 280 (Del.), C. S. Ravishankar v. Smt. Shobha

Rani AIR 2005 Kant 123.

4 Padam Sen v. State of U.P. AIR 1961 SC 218


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under Section 151 of the Act would not be lawful.5

2. Section 148 of the Code: Section 148 reserves the residual power with theCourt toenlarge time in certain cases. The said provision reads as under:

Enlargement of time. Where any period is fixed or granted by the

Court for the doing of any act prescribed or allowed by this code, the

Court may, in its discretion, from time to time, enlarge each period not

exceeding thirty days in total, even thought the period originally fixed or

granted may have expired.

The power to enlarge time has been conferred upon the courts in respect of acts,

where the time for doing such acts has been granted or fixed by the Court.

Where the time for doing of an act is prescribed by the Code, and not by a

court, the provisions of Section 148 of the Act have no application. It may be

pertinent to mention here that the reference to Code in the said section is in the

context of the authorization of the doing of the act and not as a prescription of the

time for its doing. The time of thirty days (extendable to ninety days) for the filing

of a written statement is not granted or fixed by a Court, but is a time period

fixed by the Code and, consequently, the provisions of Section 148 cannot be

resorted to.6

3. Section 5 of the Limitation Act, 1963: Section 5 of the Limitation Act, 1963confers upon the court the discretion to condone delay. However, such

condonation can be granted only in respect of an appeal or an application. Thus,

in order to invoke the provisions of Section 5 of the LA 1963, the underlying

document must constitute an appeal or an application. Clearly, a written statement

of defence filed under the provisions of Order VI and Order VIII of the Code does

not answer the description of appeal or application for the purposes of Section 5

of the LA 1963. The provisions of the said section, therefore, cannot be pressed

into service by the defendant.7

5 Savitha Gupta v. Smt. Nagaratha AIR 2003 Kant 426

6 Iridium Indian Telecom Ltd. Bombay v. Motorola Inc. 2004 (1) Mh. L.J 532

7 Sunder Lal Verma v. Ranvir Rana 2005 (1) ARC 174


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Salem Advocate Bar Association CaseThe confusion amongst the courts and the distress amongst lawyers culminated into a

challenge to the constitutional validity of the 2002 Amendment before the Supreme Court

in SalemAdvocate Bar Association v. Union of India8 (Salem Advocate Bar I) The

petitioner however sought to withdraw the writ petition, which was disallowed on the

ground that the petition had been filed in public interest. Interestingly, no arguments were

advanced on the constitutionality of the amendment. In the first brush, the Court held that

the 2002 Amendment was not in any way ultra vires the Constitution. Detailed

submissions were however made to highlight the practical difficulties in implementing

the amendment. To ensure that the amendments became effective and resulted in

quicker dispensation of justice, the Court constituted a Committee with directions to

submit a detailed report concerning the 2002 Amendment.

Upon receipt of the Report of the Committee constituted pursuant to Salem Advocate Bar

I, the matter was considered by another Bench of three judges in Salem Advocate Bar

Association v. Union of India.9As regards the provisions of Rule 1 of Order VIII, the

Court reproduced theReport, in paras 20 and 21, as follows:

20. The use of the word shall in Order VIII Rule 1 by itself is not conclusive to

determine whether the provision is mandatory or directory. The use of the

word shall is ordinarily indicative of mandatory nature of the provision, buthaving regard to the context in which it is used or having regard to the intention

of the legislation, the same can be construed as directory. Construction of the

rule or procedure which promotes justice and prevents miscarriage has to be

preferred.

21. In construing this provision, support can also be had from Order VIII Rule 10,

where despite the use of the word shall in Rule 1, the court has been given

discretion to pronounce or not to pronounce the judgment against the defendant

even if the written statement is not filed and instead pass such order as it may

think fit in relation to the suit. In construing the provisions of Order 8, Rule 1 and

Rule 10, the doctrine of harmonious construction is required to be applied. The

8 AIR 2003 SC 189

9 (2005) 6 SCC 344


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effect would be that under Rule 10 of Order VIII, the court in its discretion

would have the power to allow the defendant to file the written statement even

after the expiry of the period of 90 days provided under Order VIII Rule 1.

Clearly, therefore, the provision of Order VIII Rule 1 providing for the upper limit of 90

days to file written statement is directory.10

Other important iudicial decisions on the Rule 1 Order VIII A question of the nature of the proviso to Rule 1 of Order VIII first arose before the

Honble Supreme Court in the case ofKailash v. Nanhku and Ors.11

In that case, the

appellant was served with the summons, requiring his appearance before the Court on

06.04.2004. On the request of the counsel of the appellant on the appointed day, the

Court allowed time till 13.05.2004 for filing the written statement. On the said date, the

appellant sought further time on the ground that copies of several documents were

required to be obtained. The Court adjourned the hearing to 03.07.2004 as between

13.05.2004 to 02.07.2004, the High Court was closed for summer vacations. Towards the

end of the summer vacations, i.e. on 22.06.2004, the nephew of the appellant's advocate

expired. Although the written statement was drafted during the summer vacations and

was kept ready for filing, the same was filed only on 08.07.2004 together with an

application for condonation of delay stating the aforesaid reason. In appeal against therefusal of the High Court to accept the written statement on the ground of expiry of the

prescribed period of90 days, the Honble Supreme Court set aside the order of the High

Court and accepted the written statement. Since Nankhus was the first decision by the

Supreme Court on the issue and since this has been cited in almost all subsequent cases, it

merits some time and space.

The Supreme Court held as under:

The extension of time sought for by the defendant from the Court whether within

30 days or 90 days, as the case may be, should not be granted just as a matter of

routine and merely for the asking, more so, when the period of 90 days has

expired. The extension can be only by way of an exception and for reasons

10 On interchangeability of shall and may, M. V. "Vali Pero" v. Fernandeo Lopez AIR 1989 SC 2206

11 AIR 2005 SC 2441


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assigned by the defendant and also recorded in writing by the court to its

satisfaction. It must be spelled out that a departure from the time schedule

prescribed by Order 8 Rule 1 was being allowed to be made because the

circumstances were exceptional, occasioned by reasons beyond the control of the

defendant and such extension was required in the interest of justice, and grave

injustice would be occasioned if the time was not extended. The process of

justice may bespeeded up and hurriedbut the fairness which is a basic element of

justice cannot be permitted to be buried.

It is also to be noted that though the power of the Court under the proviso appended to

Rule 1 of Order VIII is circumscribed by the words "shall not be later than ninety days"

but the consequences flowing from non-extension of time are not specifically provided

though they may be read by necessary implication. Merely, because a provision of law is

couched in a negative language implying mandatory character, the same is not without

exceptions. The courts, when called upon to interpret the nature of the provision, may,

keeping in view the entire context in which the provision came to be enacted, hold the

same to be directory though worded in the negative form.12

The Court further observed that while extending the time beyond the stipulated period of

90 days, the courts may impose costs as a means to (a) deter the defendant and (b)

compensate the plaintiff. The Court also held that the defendant seeking extension may

be required to furnish affidavit and other documents in support of the grounds pleaded for

extension of time, depending on the facts and circumstances of a given case.

What appears to have weighed the mind of the Court in the Nankhu case was the

recording of specific findings of fact by the lower authorities to the effect that (a) the

written statement had been drafted and kept ready for filing much before the expiry of the

limitation period; and (b) the factor that prevented the defendants counsel from filing the

written statement was the death of his nephew. The first points to bonafide of the

defendant and the second, that the event that prevented the written statement from being

filed was out of the control of the defendant and his representatives.

In Rani Kusum v. Kanchan Devi,13

the summons was served upon the defendant on

12 Sangram Singh v. Election Tribunal AIR 1955 SC 425

13 AIR 2005 SC 3304


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10.11.2003 and the written statement was filed on 10.07.2004. The plaintiff objected to

the acceptance of the written statement on the ground that the same was filed beyond the

prescribed period of 90 days and that the court had, as result of the 2002 Amendment, no

discretion in the matter. The High Court, however, accepted the written statement. The

Supreme Court upheld the action of the High Court, based on the following four views:

(a) the amendment dealt with and targeted only the obligation of the defendant and not

the power of the courts to accept a written statement filed beyond the stipulated time in

that the consequences flowing from non-extension of time are not specifically

provided; (b) Order VIII, Rule 1 is a rule of procedure and is, therefore, the handmaid of

justice; (c) India follows the adversarial system; and, (d) unless compelled by express and

specific language of the statute, the courts ought not be rendered helpless to meet

extraordinary situations. The Court reiterating that the mortality of justice at the hands

of law troubles a Judge's conscience and points an angry interrogation at the law

reformer took the view that a procedural law should not ordinarily be construed as

mandatory and held that the proviso to Rule 1 of Order VIII of the Code was directory.

It appears that the reasoning which was intended to operate as a way out of a rather

stringent and a potentially harsh provision was made the ordinary rule for interpreting

procedural statutes by the Court. The procedural laws, on the contrary, represent the

guarantee of the minimum standard of safeguards in the pursuit of a legal remedy, any

conduct beneath which is considered unacceptable, and at times, abhorrent, by the

members of the society whose legislature prescribes that law. Serious difficulties would

arise for a judge, particularly from the subordinate judiciary, who is confronted with a

submission to apply the aforesaid observation in reaching his decision in respect of a

provision other than the proviso to Rule 1 of Order VIII of the Code. The only defence

against the temptation of following the Supreme Court would then be the distinction

between obiter dictum and ratio decidendi available to a properly informed judge or the

opposing counsel.14

In Shaikh Salim Haji Abdul Khayumsab v. Kumar15, the appellants were summoned on

21.10.2003 and sought time to file the written Statement, which was granted first until

14 Director of Settlements v. M.R. Apparao (2002) 4 SCC 638

15 AIR 2006 SC 396


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17.11.2003 and for a second time until 19.02.2004. The latter date being a holiday, the

written statement was filed on 20.02.2004. The trial court refused to accept the written

statement on the ground of limitation. The Supreme Court found that the trial court had

itself granted time up to 19.02.2004, which date fell beyond the period of 90 days. On the

reasoning, that had the written statement been filed on 19.02.2004, the trial court could

not have refused to accept the written statement as it was within the time granted by it,

held that a mere fortuitous circumstance cannot make the written statement filed,

unacceptable.

While the Court reasoned its decision on the said basis, the same result could have been

reached at by relying on the provisions of the Limitation Act, 1963 since the said Act

expressly provides that where the last date of limitation is a holiday, the limitation

extends to the date on which the concerned court reopens. The precise question,

therefore, that the apex Court was called to answer was whether it was at all within the

power of the trial court to provide a date which was beyond the period of 90 days. What

appears to weigh with the Court in Shaikh SalimHaji is the principle that no person can

be made to suffer because of an error on the part of ajudicial authority.16

In the case ofAditya Hotels (P) Ltd. v. Bombay Swadeshi StoresLtd.17

where the

summons was served on the defendant on 22.03.2005. On 25.04.2005, the counsel for the

defendant sought, and was granted, time to file the written statement until 20.06.2005.

The matter was adjourned three times and the written statement was finally filed in

August 2005, i.e. almost five months later. Despite serious objections from the plaintiff,

the court accepted the written statement, subject to costs of Rs.2,000/-. The action of the

court accepting the written statement was challenged before the Supreme Court on the

ground that the proviso to Order VIII, Rule 1 mandates the recording of reasons, which,

in the matter, the courts below had failed to record. The apex Court set aside the orders of

the lower courts on the ground that no reasons had been indicated justifying the

acceptance of the belated written statement.

16 Krishnaswamy S.Pd. v Union of India 281 ITR 305 (SC). The maxim of equity, namely, actus curiae

neminem gravabit - an act of court shall prejudice no man, is founded upon justice and good sense which

serves a safe and certain guide for the administration of law.

17 AIR 2007 SC 1574


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InR.N. Jadi v. Subhashchandra18

, the Supreme Court was once again confronted with a

similar question. In that case also, the Court accepted the written statement after the

expiry of the prescribed period of 90 days. In this case, however, the Court, for the first

time, laid the test of a clear satisfaction of the justification for granting such extension.

Here, the delay occasioned was a delay of merely two days beyond the 90 days period.

Citing Nankhu for the proposition that Order VIII, Rule 1 is directory, the Court

dismissed the writ appeal as not maintainable.

In the R. N. Jadi case, Balasubramanyam, J. made some interesting comments and a

possible clarification of his reading ofNankhu, to which his Lordship was a party.

Retorting tacitly the observation that ordinarily procedural laws cannot be interpreted as

mandatory, his Lordship, underlining the desirability of leaving a residuary power with

the courts, observed that there could be situations where even a procedural provision

could be construed as mandatoryKailash v. Nankhu is no authority for receiving

written statements, after the expiry of the periodpermitted by law, in a routine manner.

As indicators, where the courts could exercise the power to grant an extension, the Court

pointed out that the power to grant extension should be exercised (a) with caution, (b) for

adequate reasons (c) only based on a clear satisfaction of the justification for granting

such extension and (d) only in rare and exceptional cases.

In its order passed in the case ofZolba v. Keshao19

the Supreme Court reaffirming the

law laiddown in the Salem Advocates Bar Association case, turned its language negative

and took the view that it was unable to hold that the provisions under Order VIII, Rule 1

are mandatory in nature. In that case, a suit for partition was filed against the defendant

therein. In the said suit, an application for grant of temporary injunction was moved and

allowed. Against the order granting temporary injunction, the defendant preferred an

appeal, which remained pending. The counsel of the defendant advised that the written

statement could be filed after the decision of the aforesaid appeal. On that basis, the

defendant did not file the written statement until his counsel reconsidered the matter and

advised him to file the written statement. The defendant, accordingly, filed an application

for acceptance of the written statement along with a request for condonation of delay.

18 AIR 2007 SC 2571

19 AIR 2008 SC 2099


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The Court decided to excuse the delay for the reason that the place of filing the suit and

the place of preferring the appeal against the order of injunction were different and

therefore, the file was not available with the lawyer of the appellant at the place of the

suit and therefore, the written statement could not be filed within limitation.

In Sambhaji v. Gangabai and Ors20, the Supreme Court allowed the written statement to

be entertained after the expiry of 90 days of the service of summons on the consideration

that in a case where close relatives are litigants, a liberal approach is called for.

InMohammed Yusuf v. Faij Mohammad21, the summons in respect of a suit for a decree

for permanent injunction with application for temporary injunction was served on

06.07.2002 and the adjournments were sought and granted from time to time until

31.05.2005, when the plaintiff applied for pronouncement of judgment in terms of Order

VIII Rule 10 of the Code on the ground of non-filing of the written statement by the

defendant. On the said date, no application for condonation of delay was however filed.

The trial court refused to entertain the written statement and, instead, fixed the matter for

recording of evidence in support of plaintiffs case. In a writ petition, however, the High

Court allowed the petitioner to contest the suit on merits and accepted his written

statement, subject to payment of costs of Rs. 10,000/-.

The Court, referring to the Nankhu case, held that while the said case interpreted the

provisions of the proviso to Order VIII Rule 1 of the Code as directory, this Court, in no

uncertain terms stated that defendants may be permitted to do so only in exceptional

situation and on that reasoning, set aside the order of the High Court in view of the clear

recording of the reasons against such acceptance by the trial court. In this case, the Court

also reiterated the limitation on the writ jurisdiction of the High Courts under Articles

226/227 of the Constitution.

20 2008 (15) SCALE 322

21 2009 (1) SCALE 71


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IV. OBSERVATIONS AND SUGGESTIONSAfterNankhu, there remains no controversy that the proviso to Rule 1 of Order VIII of

the Code is directory and the time limit of 90 days stipulated therein can be extended.

What, however, continues to be difficult is the assessment of the gravity of

circumstances in which judicial discretion warrants an exercise in favour of the

extension of time. On a survey of the aforesaid decisions handed down by the Supreme

Court, the following principles appear to emerge:

1. The proviso has an in-built mechanism for the extension of time for sufficientreasons. Thus, any further extension of time beyond the stipulated time limit of

90 days in the proviso is permissible only if the Courts is clearly satisfied

that there exist cogent reasons that prevented the defendant from filing the

written statement;

2. Where the court is satisfied of the cogency of reasons, it must record itssatisfaction each time it extends the time;

3. The time which may then be extended must be reasonable considering all thefacts and circumstances and the reasons cited by the defendant.

4. In order to deter the defendant and with a view to compensating the plaintiff forthe delay, the court may impose costs upon the defendant, which would be

payable to the plaintiff.

The following suggestions are made with regard to the analysis made above:

1. It is to be noted that the trial/appellate courts are indeed following theseprinciples is far from clear. Hence there needs to be a clarity in this regard.

2. The Nankhu case has often come to being seen as an authority for theproposition that costs may be imposed in lieu of extension of time. In some

cases, it may be observed that the courts have begun to looking at costs as an

effective substitute for the courts satisfaction of the cogency of reasons. The

undercurrent leading to that attitude is perhaps an inferred consciousness that a

unexpected circumstance pressed into service and cited as a reason for the delay

in filing of the written statement, is, more often than not, unconnected with the

delay. Whether such a trend trend should be permitted is a serious concern as far

as the application of this provision is considered.


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V. CONCLUSIONDelay in the context of justice denotes the time consumed in the disposal of case, in

excess of the time within which a case can be reasonably expected to be decided by the

Court.Order VIII, Rule 1 of Code of Civil Procedure requires the defendant to file the

written statement within 30 days from the date of service of summons and ordinarily, the

Court also should not extend the time for filing the written statement beyond 90 days

from the date of service of summons. As held by Supreme Court in Salem Advocates Bar

Associations case , only in exceptional cases the Court should permit filing of written

statement beyond the upper limit of 90 days.However, our system gives no incentives for

honesty and reasonableness on the part of a litigant nor are there sufficient disincentive or

penalties for dishonesty and/or unreasonableness. If we want to curb dishonest practices

on the part of unscrupulous litigants, it is imperative that the delay must hurt dishonest

litigants more than honest litigants.

an analysis of delay in filing of written statement

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